Last Updated on August 23, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 56553/15
Stanisław Jan PIOTROWSKI
against Poland
The European Court of Human Rights (First Section), sitting on 12 February 2019 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 6 November 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Stanisław Piotrowski, is a Polish national, who was born in 1941 and lives in Gdańsk. He was represented before the Court by Ms M. Pecyna, a lawyer practising in Cracow.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
3. On 6 September 1944 the Polish Committee of National Liberation (Polski Komitet Wyzwolenia Narodowego) issued a decree on agrarian reform (dekret o reformie rolnej). The decree provided that properties of an agricultural nature, owned or co-owned by natural or legal persons, with an area exceeding 100 hectares (ha) in total or 50 ha of agricultural land, would be allocated for agrarian reform (section 2(1)(e)). It further prescribed that such properties would be transferred to the State Treasury immediately and without any compensation.
4. On 12 December 1944 the Polish Committee of National Liberation issued a decree on the nationalisation of certain forests (dekret o przejęciu niektórych lasów na własność Skarbu Państwa). The decree provided that forests and forest land, owned or co-owned by natural and legal persons, with an area exceeding 25 ha, would be transferred to the State Treasury.
2. Events before 10 October 1994
5. The applicant’s grandfather was the owner of the Mierzanowice estate and of forest land. These properties were taken over by the State Treasury pursuant to the above-mentioned decrees. The applicant is one of the legal successors of his grandfather.
3. Events after 10 October 1994
6. On 8 June 2010 the applicant brought a claim against the State Treasury in the Kielce Regional Court. He sought compensation for the nationalisation of the forest land which had been owned by his legal predecessor. He relied on section 7 of the Act of 6 July 2001 on the preservation of the national character of the country’s strategic natural resources (ustawa o zachowaniu narodowego charakteru strategicznych zasobów naturalnych kraju – “the 2001 Act”).
7. Subsequently, the applicant amended his claim and also sought compensation for a legislative omission (zaniechanie legislacyjne). He argued that the State had failed to enact the supplemental provisions referred to in section 7 of the 2001 Act.
8. On 12 October 2010 the court dismissed the applicant’s claim. With regard to the claim for an indemnity under section 7 of the 2001 Act, the court held that this provision could not be interpreted as a basis for a direct claim for an indemnity in respect of nationalised forests. The provision did not specify the amount of any indemnity that could be awarded or the applicable conditions.
9. With regard to the claim for compensation for a legislative omission, the court held that neither section 7 of the 2001 Act nor any other regulation created an obligation to legislate. Therefore, there was no basis for a compensation claim in respect of a legislative omission.
10. The applicant appealed. On 4 February 2011 the Cracow Court of Appeal set aside the Regional Court’s judgment. It confirmed that section 7 of the 2001 Act did not constitute a sufficient basis for a claim for payment of an indemnity. However, the Court of Appeal disagreed with the lower court with regard to the claim in respect of legislative omission. It found that there was potential for the applicant to establish the State’s liability for a legislative omission under Article 417 of the Civil Code in conjunction with Article 77 § 2 of the Constitution. The Court of Appeal noted that section 7 of the 2001 Act created a right to an indemnity for nationalised property. However, this regulation was incomplete in the absence of separate provisions ensuring the realisation of the right. In consequence, the situation amounted to a legislative omission. The Court of Appeal instructed the lower court to examine the applicant’s claim in respect of this ground.
11. On 29 August 2013 the Kielce Regional Court dismissed the applicant’s claim. It held that despite Article 386 § 6 of the Code of Civil Procedure (“the CCP”) and the Court of Appeal’s directives in its judgment of 4 February 2011, the court had to take into account a resolution of the Supreme Court of 20 December 2012 (no. III CZP 94/12). In that resolution the Supreme Court had held that section 7 of the 2001 Act did not constitute the basis of a subjective right for the natural persons specified in that provision or of an obligation to enact separate provisions referred to in that provision.
12. The Regional Court noted that the resolution bound only the Court of Appeal which had referred the legal question to the Supreme Court. However, the resolution also had to be taken into account in the applicant’s case. The legal question concerned a case with similar factual circumstances and the claims in that case had been based on the same legal provisions as in the applicant’s case. The court noted that consistency of case-law amounted to a guarantee of the constitutional principle that a citizen could trust in the State and its laws. In addition, this principle required that all courts had to ensure consistency of case-law.
13. The Regional Court accepted the findings of the Supreme Court’s resolution of 20 December 2012. It accordingly dismissed the applicant’s claim on the basis that the State Treasury was not liable for the alleged legislative omission.
14. The applicant appealed. He argued that the lower court had wrongly considered that there had been no legislative omission. The applicant also alleged that the lower court had failed to follow the directives of the Court of Appeal in breach of Article 386 § 6 of the CCP.
15. On 16 April 2014 the Cracow Court of Appeal dismissed the applicant’s appeal. With regard to the alleged breach of Article 386 § 6 of the CCP, the Court of Appeal noted that such a ground of appeal could have been successful if it had, at the same time, been demonstrated that the existence of that shortcoming could have had a significant impact on the outcome of the case. It also noted that the appellate court’s directives had been intended to guide the court of first instance, but they could not have imposed a given outcome in advance. For these reasons, the applicant’s argument was dismissed.
16. With regard to section 7 of the 2001 Act, the Court of Appeal held that this provision could not be interpreted as a basis for a direct claim for an indemnity. In so far as the claim for compensation in respect of a legislative omission was concerned, the court found that section 7 of the 2001 Act did not contain an obligation to enact specific provisions concerning indemnities. The Court of Appeal agreed with the Supreme Court that section 7 of the 2001 Act was a declaratory provision. It referred to a judgment of the Supreme Court of 15 February 2013 (no. I CSK 345/12). The Court of Appeal also noted that there existed established case‑law regarding the interpretation of section 7 and it found no reason to depart from that case-law.
17. The applicant lodged a cassation appeal. He alleged a breach of procedural provisions in that, inter alia, the lower courts had failed to follow the directives given by the Court of Appeal in its judgment of 4 February 2011 as to the interpretation of section 7 of the 2001 Act. The applicant further alleged that there had been no consistent interpretation of section 7 of the 2001 Act in the Supreme Court’s case-law, referring to a judgment of 29 June 2012 (case no. I CSK 547/11). In that judgment the Supreme Court had recognised that there had been a legislative omission in a similar case.
18. On 17 February 2015 the Supreme Court refused to entertain the cassation appeal. It found that the applicant had not demonstrated that there was a significant legal issue in the case. With regard to section 7 of the 2001 Act, the Supreme Court noted that this provision had been interpreted in a consistent manner in numerous decisions (namely a resolution of 20 December 2012, case no. III CZP 94/12; a judgment of 29 June 2012, case no. I CSK 547/11; judgments of 6 September 2012, case no. I CSK 59/12, case no. I CSK 77/12 and case no. I CSK 96/12; and a judgment of 15 February 2013, case no. I CSK 345/12). These decisions established that section 7 of the 2001 Act was a declaratory provision and did not constitute the basis of a subjective right; accordingly, it could not be relied on to establish a claim against the State Treasury for an indemnity in respect of loss of property of the type specified in section 1 of the 2001 Act or a claim for compensation due to the failure to enact a normative act mentioned in section 7 of the 2001 Act.
19. The Supreme Court’s decision was served on the applicant’s lawyer on 8 May 2015.
B. Relevant domestic law and practice
20. A detailed description of the relevant domestic law and the Supreme Court’s practice regarding the interpretation of section 7 of the 2001 Act can be found in the leading decision in Zamoyski-Brisson and Others v. Poland ((dec.), no. 19875/13, §§ 24-52, 12 September 2017).
21. Article 386 § 6 of the Code of Civil Procedure stipulates that a legal assessment and directives as to the further course of the proceedings expressed in the reasons for a judgment of the appellate court bind both the court to which the case was remitted and the appellate court in a renewed examination of a case.
COMPLAINTS
22. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the dismissal of his claim for an indemnity. He also contested the courts’ inconsistent interpretation of section 7 of the 2001 Act and the dismissal of his claim in respect of a legislative omission.
23. The applicant complained under Article 6 § 1 of the Convention of a breach of his right to a fair trial. He alleged that the inconsistent interpretation of section 7 of the 2001 Act had led to the dismissal of his claims. In his view, the Supreme Court had failed to ensure a consistent interpretation of this provision.
The applicant further complained of a breach of Article 386 § 6 the CCP. He referred to the fact that the Regional Court and the Court of Appeal had disregarded the directives of the Court of Appeal given in its first judgment of 4 February 2011 in respect of the interpretation of his claim for compensation for a legislative omission.
The applicant also complained of the Supreme Court’s decision refusing to entertain his cassation appeal which had deprived him of the opportunity to have the case examined on its merits by the Supreme Court.
THE LAW
A. Complaint under Article 1 of Protocol No. 1
24. The applicant complained under Article 1 of Protocol No. 1 about the courts’ dismissal of his claims for an indemnity for the nationalised forest or, in the alternative, for compensation in respect of a legislative omission. Article 1 of Protocol No. 1 to the Convention reads, in so far as relevant:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law…”
25. The Court reiterates the principles established under Article 1 of Protocol No. 1 with regard to restitution cases (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). It observes that the applicant’s complaint did not concern the nationalisation of his legal predecessor’s property effected on the basis of the 1944 decrees, and thus before the entry into force of Protocol No. 1 with regard to Poland on 10 October 1994. The Court’s competence to deal with this application is therefore not ruled out ratione temporis (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII). The principal question is that of the applicability of Article 1 of Protocol No. 1, namely whether there was a sufficient basis in domestic law, as interpreted by the domestic courts, for the applicant’s claim to qualify as an “asset” for the purposes of this provision.
26. The Court considers that the present case raises similar issues to those already examined and declared incompatible ratione materiae with the provisions of the Convention (see Zamoyski-Brisson and Others v. Poland (dec.), no. 19875/13, 12 September 2017).
27. In Zamoyski-Brisson and Others the Court firstly analysed the applicants’ assertion that section 7 of the 2001 Act constituted the basis of their claim for an indemnity in respect of the nationalised forest. It noted that the domestic courts had dismissed that contention, having found that section 7 of the 2001 Act did not confer a claim for an indemnity on former owners or their legal successors. It further held that section 7 of the 2001 Act lacked a number of essential elements allowing such a claim to be formulated, including conditions to be fulfilled by persons eligible to be indemnified or the manner of determining the amount of such an indemnity (ibid., § 72).
28. The domestic courts have consistently interpreted section 7 of the 2001 Act as excluding the possibility of it constituting an independent legal basis for a claim for an indemnity. That approach was set out in the Supreme Court’s judgment of 29 June 2012 and in its three judgments of 6 September 2012. It was subsequently confirmed in the Supreme Court’s resolution of 20 December 2012 and another judgment of that court of 26 June 2015 (ibid., § 74).
29. The Court has also examined the applicant’s submissions regarding his claim for compensation in respect of a legislative omission consisting of a failure to enact the supplemental provisions referred to in section 7 of the 2001 Act. It notes that the Supreme Court’s judgment of 29 June 2012 (case no. I CSK 547/11) acknowledged that there had been a legislative omission in a case similar to the applicant’s case. Nonetheless, in Zamoyski-Brisson and Others the Court held that the Supreme Court’s position in the above‑mentioned judgment appeared to have been an isolated example and had not been followed in its subsequent case-law (cited above, § 79). The Supreme Court subsequently confirmed that section 7 of the 2001 Act simply contained a declaration of the legislature’s intention as to the manner of satisfying future claims asserted by former owners of forests (see the Supreme Court’s resolution of 20 December 2012 and its judgment of 26 June 2015, and Zamoyski-Brisson and Others, cited above, §§ 48-52).
30. In Zamoyski-Brisson and Others, the Court found that the domestic courts’ decisions had revealed a consistent thread that claims for an indemnity in respect of the nationalised forests under section 7 of the 2001 Act, or for compensation for a legislative omission under Article 417 of the Civil Code in conjunction with Article 77 § 1 of the Constitution were to be considered unfounded in terms of domestic law (ibid., § 83).
31. The Court has examined the applicant’s submissions regarding Article 1 of Protocol No. 1 in the present case. However, it does not discern any grounds on which it could reach a different conclusion as to the lack of basis for the applicants’ claims in domestic law.
32. Having regard to its findings in Zamoyski-Brisson and Others, the Court therefore concludes that the applicant has not shown that he had claims that were sufficiently established as to be enforceable, and he therefore cannot argue that he had a “possession” within the meaning of Article 1 of Protocol No. 1.
33. It follows that the applicant’s complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. Complaints under Article 6 § 1
34. The applicant made a number of complaints under Article 6 § 1 of the Convention alleging a breach of his right to a fair trial. This provision reads, in so far as relevant:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
35. The applicant complained of the inconsistent interpretation of section 7 of the 2001 Act which had led to the dismissal of his claims. In particular, referring to the Supreme Court’s judgment of 29 June 2012 (case no. I CSK 547/11), he contested the final decision in his case that section 7 of the 2001 Act did not contain an obligation to enact specific provisions concerning indemnities. In his view, the Supreme Court had failed to ensure a consistent interpretation of this provision.
36. The Court reiterates that the criteria which guide it in its assessment of the circumstances in which conflicting decisions by different domestic courts ruling at final instance entail a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, consist in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016). The Court has already found that the domestic courts have consistently interpreted section 7 of the 2001 Act with regard to both heads of the applicant’s claim (see paragraphs 27-30 above). The applicant relied on one judgment of the Supreme Court in support of his interpretation in a claim for compensation for a legislative omission. However, this situation cannot be considered to amount to “profound and long-standing differences” in the case-law of the Supreme Court. In addition, in the applicant’s case the Supreme Court noted that section 7 of the 2001 Act had been interpreted in a consistent manner in numerous decisions (see paragraph 18 above). This finding renders the applicant’s assertion that the Supreme Court had failed to ensure the consistent interpretation of the provision in question unsubstantiated.
37. Secondly, the applicant alleged that the Regional Court and the Court of Appeal had disregarded the directives of the Court of Appeal given in its first judgment of 4 February 2011 with regard to the interpretation of his claim for compensation for a legislative omission. This, in his view, had amounted to a breach of Article 386 § 6 of the CCP.
38. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is to verify whether the effects of such interpretation are compatible with the Convention. That being so, save in the event of evident arbitrariness, it is not the Court’s role to question the interpretation of the domestic law by the national courts (see, for example, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-50, 20 October 2011).
39. The Court notes that the applicant’s arguments about the alleged failure to follow the directives in question were considered and dismissed by the Court of Appeal in its second judgment of 16 April 2014. The Court of Appeal provided adequate reasons for its decision. In addition, the Supreme Court discerned no significant legal issue in the applicant’s cassation appeal. The Court finds that the applicant had the benefit of adversarial proceedings, in which he was able to adduce evidence, and that his arguments were properly examined by the courts. At the same time, the courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable.
40. Thirdly, the applicant complained about the Supreme Court’s decision refusing to entertain his cassation appeal.
41. The Court has recently reiterated the general principles on access to superior courts in the judgment of Zubac v. Croatia ([GC], no. 40160/12, §§ 80-84, 5 April 2018). It notes that the applicant’s case was examined on its merits by two judicial instances both having full jurisdiction as to the facts and law. The Court further observes that the Supreme Court ascertained that the cassation appeal did not raise any significant legal issue and provided adequate reasons for its decision. Having regard to its relevant case‑law (see Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009), the Court finds that it cannot be maintained that the very essence of the applicant’s right of access to a court was impaired by reason of the refusal to examine his cassation appeal on the merits.
42. It follows that the applicant’s complaints under Article 6 § 1 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 March 2019.
Renata Degener Ksenija Turković
Deputy Registrar President
Leave a Reply